With Brexit set to bring an end to freedom of movement and the government establishing a new points-based immigration system, questions have been raised over how to check a person’s legal right to work in the UK.
In our guide for small business owners ("What documents you need when employing staff"), we look in detail at all the factors you need to consider and the documents you need when employing staff, casual workers and freelancers/contractors.
But how can an employer currently check a person’s legal right to work in the UK, and how might Brexit and the government’s new plans affect this process?
The employer's legal obligation
All employers have a legal obligation to check that all of their staff have a legal right to live and work in the UK before they can employ them. As an employer, you can be prosecuted, sent to jail for up to five years, and face an unlimited fine if you’re found guilty of employing someone who you knew or had ‘reasonable cause to believe’ did not have the right to work in the UK. All staff must be checked, regardless of their nationality, place of birth, etc.
When any new (or even returning) member of staff joins an employer, they must provide evidence of their right to work in the UK by showing the company an original copy of an approved document. The government provides two lists of approved documents that are considered sufficient proof of someone's legal right to work in the UK, known as List A and List B. There’s a useful gov.uk online tool to let you check what type of document can give someone the right to work in the UK.
Checks can be made by employers either manually or online. Manual checks require the employer to make a copy of the document and date it. Online checks can be made at gov.uk, but at the moment are only available for those workers who hold a biometric residence permit or card, or have status under the EU Settlement Scheme. There may be instances where you need to contact the Home Office to verify a worker’s right to work in the UK, which is explained in the government guidance below.
If a member of staff ceases to be entitled to work in the UK whilst in employment, the employer may have no option but to terminate their employment (see below).
On 30th March 2020 the government announced that there would be changes to Right to Work in the UK checks, during the Coronavirus pandemic (see below), which would end on 20th June 2021. At the last minute, the government extended the end date to 31st August 2021, and then again to 5th April 2022, and in early March this date was changed again to 30th September 2022.
Originally, the government advised (that after the covid checking measures end) you should follow the checking process set out in right to work checks: an employer’s guide a and carry out a manual right to work check using original documents (or an online right to work check where this is available, for this with Biometric Residence Permits or Cards, a Frontier Worker permit or an EU Settlement Scheme status).
However, in early January 2022, the Government announced that digital right-to-work checks are to be made permanent. Digital checks are due to launch on 6th April 2022, for British and Irish Nationals. Howeveruntil 30.9.21, Employers will have the option to undertake right to work checks for British and Irish Nationals, either manually (in person or by video call) or using the new digital "Identity Document Validation Technology". If the employer chooses to use IDVT they will need to engage a 'certified private sector IDVT service provider' (! or IDSP) to carry out these eligibility checks. The initial details of how the employer must legally interact with the IDSP, and the following process, will put most Employers off using it I would guess!
IDVT technology allows British and Irish nationals to confirm their identity and to prove they are eligible to work and rent and apply for DBS checks; by uploading images of their personal documents, instead of presenting physical documents to a prospective employer or landlord.
At the moment, checks for British and Irish nationals, from 1.10.22, will have to be in person (not via video call) or using the IDVT. This could change again, of course!
Further information will follow as the IDVT technology has not yet been released, but it is understood that the cost of the digital checks is to be funded by employers, with an individual check for UK Nationals costing between £1.45 and £70 each. On 17th January 2022, the Home Office updated their "Employer: right to work checks supporting guidance" for employers to give details of the new IDVT.
From 6th April 2022 also, only digital right to work checks will be acceptable for most non-UK nationals - further information about that is here. The existing online service is free, and can be used for applicants from overseas who have a Biometric Residence Card or Permit, or a Frontier Worker Permit, or an EU Settlement Scheme status.
The Home Office’s guide to preventing illegal working in the UK is aimed at employers and human resources staff involved in the recruitment and employment of staff in the UK. It’s available to read in full on the gov.uk website.
The guide covers the following:
- The law on illegal working
- The role and duties of an employer
- The document checks which an employer is required to carry out
- Consequences for the employer if they don't carry out the document checks and are found to be employing an illegal worker.
The government’s guidance was updated in December 2020 which you can see here - "An Employers Guide to Right to Work Checks" - the guidance applies to all right to work checks conducted on or after 17th December 2020.
Current immigration legislation
Current immigration legislation allows an employer who employs someone illegally, without carrying out the prescribed checks, to face sanctions including:
- A maximum civil penalty in respect of each illegal worker they employ, up to £20,000. From the start of 2024 the maximum penalty will be increased to £60,000.
- Closure of the business
- Disqualification as a director
- In serious cases, a criminal conviction carrying a prison sentence of up to five years and an unlimited fine.
The Immigration Act 2020
On 11th November 2020 the Immigration Act received Royal Assent. This meant an end to free movement of people from the European Union to the UK (and of course the end of free movement of people from the UK to the European Union) from 31st December 2020.
The government said that, from 1st January 2021, those wanting to come into the UK to work will need to apply for permission in advance. They'll be awarded points for a job offer at the appropriate skill level, if they speak English, and for meeting the appropriate salary threshold. Visas will be awarded to those who gain enough points. The government is also introducing special schemes to enable more scientists, academics, investors, entrepreneurs, and health and care workers to come to the UK easily. Irish citizens will continue to be able to enter and live in the UK as they do now.
You can find the details of the new immigration system at gov.uk, details of the bill at legislation.gov.uk. You can also read the Crunch guide to the new immigration system in our specialised article - it’s not as jargon-y as the gov.uk documents, for a start!
The impact of Brexit on EU citizens
Employers will be able to freely employ European Nationals who enter the UK up until 31st December 2020 (subject to the right to work checks, as described above), and should not discriminate against them.
Any EU national arriving or already living in the UK before 31st December 2020 must apply under the EU Settlement Scheme to have the right to stay in the UK (if they want to!). Their application must be submitted before 30th June 2021.
EEA and Swiss nationals can use their passport or national identity card to prove that they can work in the UK until 30th June 2021. Until this date, employers cannot require these citizens to prove their immigration status under the EU Settlement Scheme (which could cause an anomaly as the employer won't know if a new worker (after 31st December 2020) has a legal right to be working in the UK. Further guidance is given in Annex B of the government’s “An Employer’s Guide to Right to Work Checks” on how EEA nationals should be treated, and what documents are acceptable, during the period 1st January to 30th June 2021.
After 1st July 2021 employers must ask new EEA employees for proof of their immigration status - which will either be under the EU Settlement Scheme or via the new immigration system. The government is expected to publish additional guidance nearer the time.
EEA nationals who have applied under the EU Settlement Scheme will not have a physical document to prove their status - their status will need to be verified online by the Employer.Irish nationals are exempt from these arrangements, under the pre-existing Common Travel Area arrangements.
You can read our guide to the new immigration rules for the UK from 1st January 2021 for more information.
Terminating employment if the individual has no right to work in the UK (or the employer thinks they do not have the right)
Nayak v Royal Mail Group Ltd 2016
In Nayak v Royal Mail Group Ltd in 2016, the Employment Appeal Tribunal had to decide whether the employee’s dismissal was fair when the Employer genuinely believed the employee didn’t have the right to work in the UK. Mr Nayak started work for Royal Mail in January 2008 and had a succession of legitimate visas. He applied for a Tier 4 general student visa and this was initially refused but he made a successful appeal to the immigration tribunal in May 2011 and his application was passed to the Home Office for processing.
In March 2012, Royal Mail sought confirmation from the Home Office who said he had the right to work in the UK on the basis of an outstanding appeal. In 2012/13 the Royal Mail wrote to Mr Nayak three times to ask him for updated proof of his right to work in the UK and he did not reply. Further confirmation was sought from the Home Office and Mr Nayak (the details are complicated, so we’ll shorten this), and in the end Mr Nayak was warned that a failure to provide evidence of his immigration status could result in his dismissal and he was eventually dismissed.
He appealed and the Royal Mail suggested he contact the Home Office, which he didn’t; the decision to dismiss was upheld so Mr Nayak bought a claim for unfair dismissal. The original Tribunal rejected his claim so he appealed. The EAT agreed with the Tribunal that there was sufficient evidence to support Royal Mail’s genuine and reasonable belief that Mr Nayak no longer had the right to work in the UK.
Under section 3c of the Immigration Act 1971, when, before the expiry of a current visa, an individual makes an application for a new visa, they will retain the right to live and work in the UK under the terms of their previous visa – so long as the new application hasn’t been decided by the Home Office, has been withdrawn or has an appeal against a refusal outstanding.
Afzal v East London Pizza Ltd ta/ Domino's Pizza 2018
In 2018, in Afzal v East London Pizza Ltd t/a Dominos Pizza, an Employment Appeal Tribunal found that a pizza shop worker who couldn’t prove his right to work, and was therefore dismissed, was entitled to appeal his dismissal. Afzal was employed by a franchise of Domino’s Pizza as a delivery driver from October 2009 and was promoted to reach a manager-in-training by August 2016.
Afzal had time-limited leave to work until 12th August 2016 (he was married to a EU national), and at that point he could apply for evidence of his right to permanent residence (although he couldn’t apply until 15th July, and did so, and had the right to continue working while his new application was being considered).
In early June and again in mid-July, the company wrote to him to remind him to provide evidence showing he had applied to extend his right to work. However, he didn’t reply until 12th August. This reply had two attachments which his manager couldn’t open. When Azfal failed to provide the evidence by the end of 12th August, he was sent a notice of dismissal with no right to appeal.
The original Tribunal said he hadn’t been unfairly dismissed but the EAT disagreed – they said that while the original decision was ‘justified’, the appeal process would’ve allowed Afzal to demonstrate he had the right to work in the UK. The EAT sent the case back to a new Tribunal for reconsideration.
Baker v Abellio London Ltd
In Baker v Abellio London Ltd, at the EAT in December 2017: Mr Baker is a Jamaican national with the right to live and work in the UK, who was employed as a bus driver by Abellio since July 2012. In 2015, Abellio became aware that another employee didn’t have the correct documentation to prove he was legally entitled to live and work in the UK, so decided to audit their staff to ensure they all possessed the correct documentation. Baker was asked to produce one of a list of documents to prove his right to work in the UK, but he didn’t have an appropriate document.
He was suspended without pay until he could produce evidence of his right to work, even though the Home Office had confirmed Mr Baker had the right to work in the UK. Abellio scheduled meetings with Mr Baker about the issue but he didn’t attend the meetings; he did, however, get letters sent on his behalf explaining that he didn’t need documentation to prove his right to work, and explaining the Home Office’s confirmation that he had the right to work in the UK. He was however dismissed on 6th July 2015, because (the Company said) although he had the right to work in the UK, he had failed to provide documents proving this.
At the original Employment Tribunal, they agreed with Abellio that he had been dismissed due to a statutory requirement – section 15 of the Immigration, Asylum and Nationality Act 2006 (IANA) requires employers to collect certain documents if employing foreign workers. Mr Baker appealed and the Employment Appeal Tribunal clarified what the immigration rules actually require an employer to do, and say the original ET had made two errors:
- Section 15 of the IANA did not apply to Mr Baker as it only applies to those who are subject to immigration control
- Section 25 makes it clear that a person who has the right to live and work in the UK isn't subject to immigration control.
If Mr Baker had been subject to immigration control, the ET had misread S15 – the EAT said S15 does not impose a requirement on an employer to obtain certain documents, it actually provides for an ‘excusal from penalty’ i.e. if an employer has obtained documentation establishing a worker’s right to work in the UK, they may avoid or have reduced any fine imposed on them by the Home Office, if it transpires that worker did not actually have such a right.
Abellio were fixated on getting the documents required to prove Mr Baker had the right to work, ignoring the fact that he did have the right to work in the UK. Another problem for Abellio was that he was suspended without pay – a concern that an employee does not have a right to work may not be sufficient reason to cease their pay (as it could lead to an ‘unauthorised’ deduction from wages claim).
Miss W. Sims v The London Borough of Lewisham (2019)
This is quite an astonishing case. The Tribunal found that Lewisham had falsely accused Miss Sims of being in the UK illegally and she had been racially discriminated against; she was awarded over £20,000 compensation.
Miss Sims worked as a teaching assistant for Lewisham from 2015 until she was dismissed in 2018. Sims had been born in the US to an African-American mother and a Scottish father, and was brought to the UK by her mother in 1981 or 1982 (when she was four or five years old). On entry to the UK, Ms Sims was given indefinite leave to remain (ILR).
Sim’s mother died when she was 12 and she was put into care. She had her old American passport which had the ILR stamp, which she had been told meant she could stay in the UK.
In March 2018, Sims was asked to go through a DBS check (she had previously worked for the London Borough of Bromley for 15 years and completed several DBS checks while there), but the online DBS system the school used would not allow Sims to go beyond the visa section, as it required the ILR to be in a current passport, or for her to produce a biometric residency permit which she did not have.
After a second failure at using the system, Sims met the headteacher and brought her ILR and previous DBS checks to the meeting. The headteacher told her that Lewisham HR had said that her ILR was no longer valid. Sims told the headteacher that her ILR could not expire. She later received a letter from the school saying that the documents she had provided did not meet the requirements set by the UK Border Agency and that she would be suspended and may be dismissed.
On 30th April Sims met with a member of Lewisham’s HR department and Sims told the Tribunal the HR representative had said “That was a very good story but your mum was obviously an illegal immigrant, which would make you an illegal immigrant” and had alleged that Sims passport was fake. The HR representative went onto say that Sims was lying about the ILR stamp being valid, and that she would be dismissed. She was dismissed on the same day, without a right to appeal.
On 15th February 2019, Sims received her biometric residency permit following her application to the Windrush taskforce. She then approached Acas with a tribunal claim (she had contacted her MP and various legal and other bodies for help, after her dismissal) for unfair dismissal and race discrimination.
The tribunal found that she had been directly discriminated against and that her employer had assumed “her to be dishonest and illegally in the country”.
Changes to right to work checks during the coronavirus pandemic 2020
The government announced on 30th March 2020 that there would be changes to Right to Work in the UK checks, during the coronavirus pandemic. You can read the full details at gov.uk but a summary of the temporary changes are:
- Checks can now be carried out over video calls
- Job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
- Employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
Checks continue to be necessary and you must continue to check the prescribed documents listed in right to work checks: an employer’s guide. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.
The government announced that these adjusted right to work checks will end on 16th May 2021, but after a lot of criticism, they announced at the last minute that these changes would come into effect on 21st June 2021; this then changed to 31st August 2021, and has now changed to 5th April 2022! This now means that employers will need to revert back to how this was done previously from the 5th April 2022 - i.e. making a manual check using the employees original documents (or a digital check for EU staff registered under the Settlement Scheme; or for staff who hold a Biometric Residence Permit or Card, or a Frontier worker permit).
Making a manual check does not require the employee to be physically present - if the new member of staff sends their documents to the employer, the employer can make a manual check of the document while talking to the worker on a video link at the same time.
If you are an employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.